Nipun Cherian v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **TUESDAY, THE 8[TH] DAY OF JUNE 2021 / 18TH JYAISHTA, 1943** ## **CRL.MC NO. 553 OF 2021** ## **CRIME NO.614/2020 OF THE ERNAKULAM TOWN SOUTH POLICE STATION** ## **PETITIONER/S:** NIPUN CHERIAN AGED 34 YEARS S/O.ANTONY MANJOORAN, COLUMBIA 9F, SKYLINE IVY LEAGUE, EDACHIRA, KAKKANAD, ERNAKULAM-682030. BY ADVS. ASHIK K.MOHAMMED ALI SMT.P.K.JAYASREETHANKACHI ## **RESPONDENT/S:** STATE OF KERALA REPRESENTED BY THE SUB INSPECTOR OF POLICE, ERNAKULAM TOWN SOUTH POLICE STATION, THEVARA, ERNAKULAM (THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM). BY ADV GOVERNMENT PLEADER ## **OTHER PRESENT:** SR.PP. C.S.HRITHWIK ## **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON** **10.03.2021, THE COURT ON 08.06.2021 DELIVERED THE FOLLOWING:** **Crl.M.C No.553 of 2021** 2 ## **ORDER** **Dated this the 8[th] day of June, 2021** **The petitioner is the first accused in Crime No. 614 of 2020 registered at the Ernakulam Town South Police Station for offences punishable under Sections 447, 353, 506 and 427 r/w 34 of IPC and the subsequently added Section 3(1) of the Prevention of Damages to Public Property Act, 1994. The crime was registered on the allegation that the petitioner and three others had trespassed into the private property of one Commander Praveen George from where soil was being excavated for geotechnical analysis by the Kochi Metro Rail Ltd (KMRL), in connection with the proposed Water Metro Project of the State Government. It is alleged that the accused intimidated the workers, destroyed some of the** **Crl.M.C No.553 of 2021** 3 **soil samples and took away the balance, thereby causing a loss to the tune of Rs.2.25 lakhs. The petitioner is seeking to get the FIR and further proceedings quashed. The prayer is founded on the contention that no offence will be made out, even if the allegations are accepted in their entirety.** **2. According to Sri.Ashik K. Mohamed Ali, learned Counsel for the petitioner, the KMRL was attempting to construct a bund to the Chilavannur Kayal, violating the Stop Memos issued by the revenue authorities, as also the interim direction of the High Court. On coming to know about this, the petitioner, as a dutiful citizen, had prevented the workers at the site from continuing the illegal activity. In an attempt to prove the contention, reliance was placed on Annexure A3 and A6 orders of this Court and Annexures A4 and A5 Stop Memos issued by revenue authorities.** **Crl.M.C No.553 of 2021** 4 **Attention was drawn to Annexures A7 and A8 satellite images, to point out the illegal constructions around Chilavannoor Kayal and Annexure A10, to contend that the alleged place of occurrence is within prohibited distance from the high tide line. The decision in** _**Poulose v State of Kerala**_ **(1984 KLT 759) was cited to contend that the offence under Section 353 IPC will be attracted only when a public servant is prevented from carrying out his lawful duty and not when an illegal activity by the public servant is obstructed. It was also argued that the ingredients to attract the other IPC offences are not made out and that the offence under Section 3(1) of the PDPP Act has been added to get over this lacuna.** **3. Sri.Hrithik C.S, learned Senior Public Prosecutor, highlighted the circumspection with** **Crl.M.C No.553 of 2021** 5 **which the power under Section 482 Cr.P.C is to be exercised, particularly when the prayer is for premature termination of a criminal investigation. Refuting the factual averments, it was submitted that the KMRL and its workers were not engaged in any construction activity in or around Chilavannoor Kayal. The only work being done was collection of samples for geotechnical investigation from a private property and as on 16.09.2020, sixty samples had been collected and stored inside wooden boxes. The petitioner along with other accused trespassed into the property, intimidated and threatened the workers at the site, destroyed some of the samples and took away the rest. According to the learned Prosecutor, the work was done after obtaining sanction from the District Collector and with due intimation to the Village Officer. It was pointed out that the stop** **Crl.M.C No.553 of 2021** 6 **memos produced by the petitioner have nothing to do with the soil sampling work conducted by the KMRL and that no order interdicting the preparatory activities of the Water Metro Project has been issued by the High Court.** **4. The argument based on the stop memos issued by the revenue authorities and the interim order of this Court cannot be countenanced for the following reasons; Annexures A4 and A5 stop memos have nothing to do with the soil sampling work undertaken by the KMRL. The direction in Annexure A3 is only to survey the lands on the banks of Chilavannur lake. Pertinently, even in Annexure A6 order issued in the writ petition filed by the petitioner challenging the encroachments, illegal constructions and dumping of waste in and around Chilavannur Kayal, there is no order interdicting the activities of the KMRL. As such, the** **Crl.M.C No.553 of 2021** 7 **contention that the activities of the KMRL being illegal, the offence under Section 353 IPC is not attracted, is liable to be rejected.** **5. The legal position that the High Court, while exercising jurisdiction under Section 482 Cr.P.C should not embark upon an enquiry as to the genuineness or otherwise of the allegations or probe into the evidence, being trite, the argument based on Google Maps and Charts is also liable to be rejected.** **6. Having gone through the allegations in the FIR and the statement of the de-facto complainant, I am unable to accept the contention that the allegations do not disclose the commission of any offence or make out a case against the petitioner.** **7. The learned Counsel for the petitioner strenuously contended that the petitioner is being victimised for espousing a public cause. Even** **Crl.M.C No.553 of 2021** 8 **accepting that the petitioner is a good samaritan, the alleged act of intimidating workers engaged in public work and of destroying the soil samples, cannot be justified. Such acts, if encouraged, will upset the rule of law and lead to anarchy.** **In the result, the Crl.M.C is dismissed.** **Sd/-** **V.G.ARUN JUDGE** ## **Scl/** **Crl.M.C No.553 of 2021** 9 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** ANNEXURE A1 CERTIFIED COPY OF THE FIR IN CRIME NO.614 OF 2020 OF THE ERNAKULAM TOWN SOUTH POLICE STATION ALONG WITH THE FI STATEMENT. ANNEXURE A2 TRUE COPY OF THE ORDER DATED 07.10.2020 IN CRL.M.C.NO.1869 OF 2020 OF THE HONOURABLE SESSIONS COURT, ERNAKULAM. ANNEXURE A3 TRUE COPY OF THE ORDER DATED 15.12.2016 OF THE HONOURABLE HIGH COURT OF KERALA IN WP(C)NO.34805 OF 2016. ANNEXURE A4 TRUE COPY OF THE STOP MEMO DATED 01.03.2019 ISSUED BY THE ELAMKULAM VILLAGE OFFICER. ANNEXURE A5 TRUE COPY OF THE STOP MEMO DATED 23.03.2019 ISSUED BY THE POONITHURA VILLAGE OFFICER. ANNEXURE A6 TRUE COPY OF THE INTERIM ORDER DATED 03.04.2019 IN W.P(C)NO.9286 OF 2019 OF THIS HONOURABLE COURT.